MUSTT. BEGUM MAMTAZ AND ANOTHER Vs. ASSAM BOARD OF REVENUE AND OTHERS
LAWS(GAU)-1973-1-12
HIGH COURT OF GAUHATI
Decided on January 31,1973

Mustt. Begum Mamtaz And Another Appellant
VERSUS
Assam Board Of Revenue And Others Respondents

JUDGEMENT

P. K. Goswami, J. - (1.) THIS application under Article 226 of the Constitution of India is directed against an order of the Board of Revenue in an application under Section 81 of the Assam Land and Revenue Regulation filed before it by the Respondents 2 to 5.
(2.) THE Board of Revenue fixed the application for hearing on 6 -10 -1969. On that day the ordersheet showed as follows: "The appellant and his Advocate absent without any steps. Heard the Advocate for the opposite party on law as well as on merits. Orders reserved." Later the same day at 3 P. M. the following order was recorded: "Subsequently the Advocate for the petitioner appears and submits cause why he could not be present in time. His plea is accepted. Heard him on merits. Orders reserved." Finally the impugned order was passed allowing the application on 28 -11 -1969. Hence this Writ application. At the time of issuance of the Rule on 4 -3 -1970 we called for a report from the Board of Revenue with regard to the averments, mentioned in paragraph 4 of the application, to the effect that "the case was heard on 6 -10 -1969 at 11 A. M. in absence of the learned Advocate for the petitioner who came and argued his case at 3 P. M. but opportunity to reply his points was not given to the present petitioners". The Board has now sent its report admitting that as the petitioners before the Board or their Advocate were absent at the appointed time, the Respondent's Counsel was heard and orders were reserved. The Board, however, admits in the report that later at 3 P. M. in absence of the Respondents' Counsel the matter was reopened after accepting the plea of the petitioner's Counsel with regard to his absence earlier on the day and reserved the orders again by a separate order as quoted above. The result is that the Board on the same day heard first the Respondents in absence of the petitioner and later again heard the petitioner in absence of the Respondents and without notice to the latter. The Board justifies this procedure by mentioning that "the learned Advocate for the petitioners mainly reiterated the averments made in the petition, which the learned Advocate for the Opposite party had already seen and given his reply in the course of his submissions." The Board of Revenue is the highest Revenue authority in the State and has to function in conformity with the Assam Board of Revenue Regulation I of 1963. Section 14 of the Regulation, which alone is relevant, may be quoted: "14. Procedure in case of non -appearance of parties - (1) If on the date fixed for hearing or on any other subsequent day to which the hearing may be adjourned, the appellant or applicant does not appear either in person or through his Agent or Advocate when the appeal or application is called for hearing the Board may dismiss the appeal or application or may decide it on merit, after hearing the respondent or his Agent or Advocate. (2) If on the date fixed for hearing or on any other subsequent day to which the hearing may be adjourned the respondent or opponent, as the case may be does not appear in person or through his Agent or Advocate when the appeal or application is Called for hearing, the Board may decide the same on merits, after hearing the appellant or applicant or his Agent or Advocate. (3) ** ** **" It is clear, therefore that the Board could hear the Respondents in absence of the applicant and decide the application on merits. The first order of the day shows that the Board intended to proceed under Section 14 (1) of the Regulation. Later, however, without cancelling that order after notice to the Respondents, the Board in absence of the Respondents heard the petitioner's Counsel ex parte. In doing so it deprived the Respondents of the opportunity of being present at the time the Board heard the petitioner's Counsel. We have held in a Special Bench decision of this Court that the Board is a Court while hearing an application under Section 81 of the Regulation. Even as a quasi -judicial tribunal the duty to hear in conformity with the fundamental principles of natural justice is cast upon the Board. It is a clear case where the Board has violated the principles of natural justice by setting aside its earlier order of the morning of 6th October 1969 at 3 P. M. in absence of the Respondents and hearing the petitioner in absence of the Respondents. As it looks the Respondents went with the idea that their appeal was heard on merits in absence of the petitioners. Later on, they found that the appellant's counsel was heard in their absence and they naturally felt a grievance against the Board in not giving them an opportunity to reply to the points urged before the Board. Justice may not only be done but must manifestly appear to be done, as is well settled. In this case, the petitioners can rightly claim that justice has not been done in their case in disposal of the application before the Board. We are, therefore, constrained to quash the impugned order of the Board on the ground that it is violated of the principles of natural justice. The procedure followed by the Board is unknown to the Regulation as also to the well established procedure of hearing a matter be it by a Court or by a Tribunal. After passing the first order on 6 -10 -1969 the only course available to the Board was to proceed under Sec. 15 if the absentee party chose to make an appropriate application, in which case the opposite party, would get notice. We would ordinarily not expect each a lapse on the part of the highest Revenue body in the State.
(3.) THE application is accordingly allowed. The impugned order is quashed and the Rule is made absolute. Since, however, the Respondents are not to blame for the lapse of the Board we leave the parties to bear their own costs. M. C. Pathak, J.;


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